The Indypendent: The Poor Man’s Lawyer: Inequality in the Courtroom

As the judge read out the sentence, Jose Santiago and the public defense attorney he’d just met that day listened in an almost empty courtroom. It was 2009, and Santiago spent the next year and a half in prison.

Santiago was arrested one month after his 16th birthday for running past a pedestrian and snatching his iPod. Unable to post $1,500 bail, he was sent to Rikers Island, where he waited two months before being convicted of robbery in the second degree, a felony punishable by up to three years in prison.

Santiago recalls that during the two months he awaited sentencing he went to Queens Criminal Court six times, each time asking to see an attorney to no avail. “Never did I get a chance to actually see my lawyer until the day I was gonna get sentenced,” he said.

Santiago’s experience with public defenders isn’t unique, and in New York, it’s a statewide problem. The state settled a class-action lawsuit in October 2014 that contended the poor in five upstate counties were consistently denied proper criminal defense in court. Despite the fact that the right to a criminal defense attorney is constitutionally guaranteed, a September 2014 report by the New York Civil Liberties Union, one of the plaintiffs in the seven-year suit, found that “New York’s public defense system routinely fails poor people accused of crimes.”

Since the settlement, more than a dozen upstate counties not named in the lawsuit have called on the state to take over responsibility for their public defense, citing an acute lack of resources and capacity.

According to Seymour James, an attorney of 40 years who was named head of the Legal Aid Society (LAS) last July, the state of public defense in New York City has never been as dire as it was in the five counties that sued the state. He noted, however, that while the situation has improved in the last half decade, for many years excessive case volumes left city attorneys unable to dedicate sufficient time to each case, with serious ramifications for the city’s poor.

The Indigent Defense Organization Oversight Committee, which monitors public defense in Manhattan and the Bronx on behalf of the New York Supreme Court, repeatedly raised similar concerns since beginning oversight in 1996. Of the period 2009-2010, during which Santiago was arrested, the committee wrote with apparent chagrin that it “unfortunately must reiterate its previously expressed view that ‘it is hard to imagine that each indigent person charged with a crime or offense is receiving sufficient legal counseling.’”

‘Hell on Rikers island’

Santiago was born in Puerto Rico and raised all over New York City, bouncing from foster home to foster home since the age of 10. He’s a 5’7’’, solidly built 21-year-old. Back in 2009, however, he was a scrawny, 5’4’’ kid who kept getting jumped in the bullpens.
“I went through hell on Rikers Island,” he said, pointing to a faded scar on his lip he got from a fight.

When his public defense attorney presented a chance to get out of Rikers by agreeing to do a six-month-long program at the Fortune Society, a nonprofit in Queens that provides alternatives to incarceration, and five years of probation, Santiago jumped at the opportunity.

He went free only to end up back in court a month later. A fight with a schoolmate that didn’t even escalate to punches landed Santiago a harassment charge. “A violation,” he recalled an attorney telling him after a hasty chat. Unaware of the consequences, he pled guilty.

And so it was that Santiago found himself in front of a judge, that time with a different public defense attorney, being sentenced to one and a half years in an upstate prison for having violated the terms of his previous sentence.

There’s a hypnotic charm to the way Santiago recounts his encounters with the criminal justice system. His brown eyes grow wild and his head bobs with every other word. He tells his story with the good humor of a young man who’s aware of his mistakes. And though he remembers parts of his past in staggering detail — faces, addresses and names — he can’t recall the men and women who defended him in court.

“The word going around [in Rikers] was, if it’s a severe case, get a real lawyer. Pay for a lawyer,” he said. “’Cause public defenders, they deal with so many people, to them you’re just another case, just another number.”

Reducing Caseload

In 2009, the year Santiago was sent to prison, a state law limited the number of caseloads New York City public defenders could take on to 400 misdemeanors or 150 felonies a year. James told The Indypendent that when the law was passed, each LAS attorney averaged 632 cases a year. “It was like an emergency room,” James said. “You had so many cases you had to triage all the time.”

In New York City, there is no traditional public defender’s office. The work of representing the poor is decentralized, done on one hand by organizations such as Legal Aid and on the other by private lawyers contracted by the city. LAS and similar public defense firms — the Bronx Defenders, Brooklyn Defender Services, Queens Law Associates and others — handle the vast majority of cases, and Legal Aid is the largest provider.

The city’s contribution to public defense has gradually increased over the last several years — it plans to spend just shy of $253 million dollars on it in 2015, up from $204 million in 2008. The state, meanwhile, has consistently contributed approximately $40 million of that budget.

In conjunction with the caseload cap, the increased funding has allowed defense providers to hire more lawyers and ease some of the pressure defenders deal with. “The situation has really changed dramatically,” James said. He reports that lawyers are now able to spend more time on their cases, writing motions, researching, investigating and doing social work referrals.

While it appears that people like Santiago have a better chance of receiving adequate defense today than several years ago, improving the quality of representation by limiting caseloads and increasing funding only addresses part of the problem the poor have when dealing with the criminal justice system.

“In terms of the quality of representation, I think the public defenders of New York do an absolutely incredible job at representing their clients,” Legal Aid attorney Bina Ahmad said.

But what wealthy and indigent clients face in the streets and in court varies drastically, she pointed out, noting that the system continues to arrest the poor at staggering rates by targeting them for minor offenses. Ahmad, who works in Staten Island, has heard colleagues lament the “astronomical” rates at which subway arrests — for anything from jumping turnstiles to performing on the trains — have increased in the year since Mayor Bill de Blasio and Police Commissioner William Bratton took office.

And though organizations like LAS have more funds and attorneys as compared with several years ago, the number of yearly cases the firm handles as a whole remains high. It took on more than 220,000 criminal defense cases last year, up from 210,000 in 2003. While violent crime in New York City has been steadily declining — with a drop of almost 80 percent since 1990, according to NYPD CompStat records — misdemeanor arrests have risen sharply. They doubled since 1990, reaching more 225,000 in 2013.

James said that LAS handles a high number of misdemeanor cases “as a result of the quality-of-life initiatives that were implemented going back to the Giuliani administration,” adding that these policing tactics continued into the Bloomberg and de Blasio eras. “People get arrested for taking up two seats on the subway. They get arrested for riding a bicycle on the sidewalk,” he said. “The vast majority of people we see coming in under those types of cases are people of color.”

These “broken windows” policies — which were championed by Bratton during his first stint as police commissioner in the mid-1990s and which have since come to define policing in the city — have been accompanied by more than arrests. “The enmeshed penalties and collateral consequences of criminal justice involvement since the 1970s have gotten broader, and deeper and wider,” said Robin Steinberg, founder and executive director of the Bronx Defenders, which had almost 22,000 people come through its doors last year in search of advice.

“With that came more and more destabilizing of individuals, their families and their communities. We in the front lines have been seeing this happening for decades.”